| People v Benn |
| 2018 NY Slip Op 02212 [159 AD3d 1272] |
| March 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JasonBenn, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 19, 2015, convicting defendant upon his plea of guilty of the crimes of aggravatedunlicensed operation of a motor vehicle in the first degree and driving while intoxicated.
In 2014, defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information (hereinafter SCI) charging him with aggravated unlicensed operation of amotor vehicle in the first degree and driving while intoxicated. Thereafter, defendant waived hisright to appeal and pleaded guilty as charged in exchange for an agreed-upon aggregate sentenceof one year in the local jail. As part of the plea agreement, defendant was required to complywith certain conditions, including remaining free from additional arrests and charges, or risksentence enhancement. At sentencing, defendant admitted to violating several plea agreementconditions and was ultimately sentenced to an aggregate prison term of 1 to 3 years. Defendantnow appeals.
We affirm. Initially, we disagree with defendant's contention that the SCI was jurisdictionallydefective. Specifically, defendant argues that the SCI failed to allege all material elements ofaggravated unlicensed operation of a motor vehicle in the first degree and driving whileintoxicated inasmuch as the People did not state that the crimes occurred on a public highway(see Vehicle and Traffic Law §§ 511 [3] [a]; 1192 [2], [7]; People v Stewart, 92 AD3d 1146,1147 [2012]; People v Beyer, 21AD3d 592, 594 [2005], lv denied 6 NY3d 752 [2005]). Although this claim survivesdefendant's guilty plea and appeal waiver (see People v Guerrero, 28 NY3d 110, 116 [2016]; People v Place, 50 AD3d 1313,1314 [2008], lv denied 11 NY3d 740[*2][2008]), nodefect exists when the SCI incorporates elements by specific reference to the crimes' statutoryauthority because such incorporation "constitute[s] allegations of all the elements of the crime"(People v D'Angelo, 98 NY2d 733, 735 [2002]; see People v Brothers, 123 AD3d 1240, 1240-1241 [2014]), whilealso giving the defendant "fair notice of the charges made against him [or her]" (People vRay, 71 NY2d 849, 850 [1988] [internal quotation marks and citation omitted]; see People v Binns, 82 AD3d1449, 1450 [2011]). Here, although the SCI failed to state specifically where defendant wasdriving and whether that location was in fact a public highway, it expressly referenced Vehicleand Traffic Law §§ 511 (3) (a) and 1192 (2) and made no other affirmativestatement of facts that would negate the statutory references (compare People v Boula, 106 AD3d 1371, 1372 [2013], lvdenied 21 NY3d 1040 [2013]). As such, we find that the SCI effectively charged defendantwith the commission of the subject crimes (see People v Brothers, 123 AD3d at1240-1241; compare People v Stewart, 92 AD3d at 1147).
Next, defendant argues that County Court erred in imposing an enhanced sentence. Althoughthis issue is not precluded by the express terms of defendant's appeal waiver, it is unpreservedinasmuch as he failed to object to the enhanced sentence or make any appropriate motion (see People v Bennett, 143 AD3d1008, 1009 [2016]; People vTole, 119 AD3d 982, 983-984 [2014]). Were we to address the issue, we would find thatthe court did not err in imposing the enhanced sentence under the circumstances presentedbecause, when defendant was provided sufficient opportunity to dispute the alleged pleaagreement violations (see People vValencia, 3 NY3d 714, 715 [2004]), he readily admitted to the proscribed conduct (see People v Woods, 150 AD3d1560, 1561 [2017], lv denied 29 NY3d 1095 [2017]; People v Davis, 30 AD3d 893, 895[2006], lv denied 7 NY3d 847 [2006]; People v Therrien, 301 AD2d 751, 752[2003], lv denied 99 NY2d 633 [2003]).
Defendant also challenges the severity of the enhanced sentence. Although the express termsof defendant's appeal waiver again permit him to bring such a challenge, we are not persuadedthat the enhanced sentence, which was less than the maximum permissible sentence (seeVehicle and Traffic Law § 511 [3] [b]; Penal Law § 70.00 [2] [e]),was either harsh or excessive given defendant's extensive criminal history and his continuedcriminal activity after entering his guilty plea. Accordingly, we find no extraordinarycircumstances or any abuse of discretion warranting a reduction of the enhanced sentence in theinterest of justice (see People vGalagan, 85 AD3d 1490, 1491 [2011]; People v Thomas, 56 AD3d 815, 816 [2008]; People vScott, 196 AD2d 921, 921 [1993]).
Garry, P.J., McCarthy, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.